Judgement

CHANDRACHUD, J.:- Ten persons were tried by the learned Sessions judge, Orai, for various offences arising out of the death of one Bhagat Ram and injuries to three others. The learned Judge acquitted three of them and convicted the remaining seven. The respondent, Sheo Ram, was convicted under Section 302 and was sentenced to death. He was also convicted like others under Section 148 and Sections 323,324,325 and 307 read with Section 149 of the Penal Code. Those who were convicted filed an appeal in the High Court of Allahabad while the State Government filed appeals against those who were acquitted by the learned Judge. By its judgment D/- 10-11-1971 the High Court upheld the conviction of three out of the seven persons convicted by the trial court and ordered the acquittal of the remaining four. The State appeal against the acquittal of three persons was dismissed by the High Court. This appeal by special leave is filed by the State against the judgment of the High Court acquitting the respondent. Sheo Ram. We are not concerned in this appeal with the judgment of the High Court in regard to the High Court in regard to the remaining nine accused.

2. At about 12 noon on April 10, 1970 the respondent Sheo Ram who appears to have been the sub-Editor of a daily newspaper called "Dinvir" and four students went to the Halwai shop of the deceased Bhagat Ram. They ate heartily but refused to pay the bill. During the course of a quarral which ensued between them and the servant of the deceased they gave a threat that they will come back to teach a good lesson to everybody. A report about this incident was lodged by Bhagat Ram at the Orai police station at about 12-30 p.m.

3. At about 4-30p.m. on the same day a group of 12 to 13 persons including the respondent is alleged to have gone to Bhagat Ram s shop. They were armed with various weapons and are alleged to have caused injuries to Bhagat Ram, his brother Bhajan Lal his father Dilamal and to, his sister s husband Lakha Mal. Bhagat Ram received a fatal stab injury, Bhajan Lal received a contused injury which caused a fracture, Dilamal received two lacerated wounds and two contusions while Lakha Mal received an incised injury. These persons were taken to the hospital but Bhagat Ram was already dead. The cause of death was a puncture wound over his right scapula.

4. The First Information Report of the occurrence was lodged by Bhajan Lal at about 5 p.m. It mentions the name of the respondent with his description as the "Editor of Dinvir". The Report does not ascribe any particular part to the accused mentioned there in nor does it mention that the respondent Sheo Ram was armed with a knife.

5. The scope of this appeal is narrow for two reasons. There is no credible evidence to hold that the respondent caused the stab injury to Bhagat Ram and for that reason it would be difficult to accept the appeal filed by the State in its entirety. The other reason is that even accepting the findings of the High Court it would be difficult to distinguish between the case against the respondent and that against the three persons whose conviction has been upheld by the High Court. At the least the High Court ought to have convicted the respondent of those charges of which the three others were convicted.

6. Agreeing with the trial court the High Court held that the presence of the eye-witnesses at the time and place of occurrence could not be doubted. Out of the six eye-witnesses examined by the prosecution Bhajan Lal, and Lakha Mal had received injuries during the incident. Ramphal was working as a servant in Bhagwat Ram s shop while Panna Lal, Janki and Bhagwan Das were neighbouring shopkeepers.

7. The High Court has further held that persons who went to Bhagat Ram s shop had formed an unlawful assembly but that the object of that assembly was to cause grievous hurt to Bhajan Lal and others. Learned counsel have taken us through the entire evidence but we see no reason why the concurrent finding o